PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1942

UNITED STATES OF AMERICA

v.

TERRELL STEVENSON,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-12-cr-00145-005)

District Judge: Honorable Robert D. Mariani

___________

Submitted May 20, 2016

Before: SMITH, HARDIMAN, and SHWARTZ,

Circuit Judges.

(Filed: August 9, 2016)

2

Michelle L. Olshefski

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Attorney for Appellee

Gino A. Bartolai, Jr.

238 William Street

Pittston, PA 18640

Attorney for Appellant

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal arises out of a federal investigation into a

heroin distribution ring that operated out of a Scranton hip-

hop radio station and recording studio called Hood Promo.

Eight individuals associated with the hip-hop heroin hub were

indicted on various federal drug and weapons charges. All of

them pleaded guilty except for Appellant Terrell Stevenson.

Before Stevenson was brought to trial, the Defendants

filed dozens of pretrial motions. Although most of the delay

occasioned by the various motions and plea negotiations was

“excludable time” under federal law, the Government

conceded that Stevenson’s rights under the Speedy Trial Act

were nevertheless violated. Accordingly, Stevenson filed a

motion to dismiss his indictment, which the District Court

granted without prejudice to the Government’s right to indict

him anew on the same charges. Stevenson’s principal

3

claim in this appeal is that the District Court abused its

discretion when it granted his motion to dismiss without

prejudice. He also argues that the indictment failed to allege

all the elements of the crime of fraud in relation to

identification documents. In addition, he appeals the District

Court’s denial of his motions to suppress, the propriety of the

District Court’s conduct at trial, and the reasonableness of his

360-month sentence.

I

A

In December 2011, at the request of the Lackawanna

County Drug Task Force, federal agents became involved in

the search for an elusive heroin dealer named Siquana

Wallace. Using a variety of investigatory methods, including

confidential sources, physical surveillance, undercover

purchases, body wires, and a pole camera, the agents

concluded that Hood Promo was the Scranton hub of a heroin

ring. The owner of Hood Promo—Lamar Thomas a.k.a.

“Hood”—and another man—Greg Bush a.k.a. “G”—were

suspected of transporting heroin from New York to Scranton

and then distributing the drugs out of Hood Promo. One

member of the drug trafficking organization was a 5’6” black

male in his late twenties known as “Inf” or “Infinite,” who

drove a gray BMW. In addition to concluding that “Inf” dealt

heroin in nearby Wilkes-Barre, the agents learned that “Inf”

was wanted in New York for drug-related crimes and that his

real name was Terrell Stevenson.

While conducting surveillance outside Hood Promo on

February 15, 2012, DEA Special Agent William Davis

observed a black male arrive at the studio in a gray 2004

4

BMW, enter and exit the building, and begin driving in the

direction of Wilkes-Barre. His “investigative instinct” roused,

Davis ran the vehicle’s registration and arranged for the local

police to conduct a traffic stop after he learned the car was

registered to Lamar Thomas. App. 962. The driver of the

car—who agents later learned was Appellant Stevenson—

produced a Georgia driver’s license bearing the name Nathan

Ernest Truitt. The police accordingly sent “Truitt” on his way.

Stevenson did not escape the DEA’s grasp for long.

Court-authorized wiretaps of Thomas’s and Bush’s phones

and further investigation into Hood Promo led the authorities

to home in on several suspects, including Stevenson. On May

22, 2012, Special Agent Davis submitted an affidavit in

support of a search warrant application for five properties,

one of which was Stevenson’s residence. A magistrate judge

issued the warrant and the DEA executed it, arresting

Stevenson and his roommate Chris Taylor, and seizing

hundreds of glassine baggies of heroin, a loaded handgun

(found in Stevenson’s room and later confirmed to be stolen),

fraudulent driver’s licenses and credit cards in the names of

Gregory Matthew Henderson and Nathan Ernest Truitt (found

on Stevenson’s person), and various other inculpatory items

and documents. In all, eight individuals were arrested around

the same time in connection with the Hood Promo

conspiracy.

B

The number of Defendants and the complexity of the

case resulted in a lengthy and sometimes hectic pretrial

process. On June 5, 2012, a federal grand jury returned an

indictment against seven defendants, including Stevenson,

who was charged with conspiracy to distribute and to possess

5

with intent to distribute 100 grams or more of heroin within

1,000 feet of a school in violation of 21 U.S.C. §§ 846 and

841; unlawful use of a communication facility (i.e., using a

cellphone in furtherance of his illegal activity) in violation of

21 U.S.C. § 843(b); and unlawful possession of a stolen

firearm in violation of 18 U.S.C. § 922(j). Because Stevenson

refused to enter a plea at his June 13, 2012 arraignment, the

District Court entered a plea of not guilty on his behalf and

scheduled trial for August 20, 2012, setting July 16 as the

deadline for filing pretrial motions. When that date arrived,

Stevenson filed his first of eight unopposed motions to extend

the pretrial motions deadline, all of which were granted by the

District Court. The cycle repeated when a federal grand jury

returned a superseding indictment on October 16, 2012,

which was identical to the original indictment, except that it

added an eighth defendant. The Court once again entered a

plea of not guilty for Stevenson after he refused to enter a

plea.

The next year involved a steady stream of pretrial

motions and extension requests from the Defendants. Among

them was a motion by Stevenson to suppress evidence seized

from his residence for lack of probable cause to support the

search warrant, which the District Court denied on October

25, 2013. From that day until February 7, 2014, the 70-day

Speedy Trial Act clock was running (except for one

excludable day). See 18 U.S.C. § 3161(c)(1), (h). Seizing on

this inappropriate delay, Stevenson filed a motion to dismiss

on June 16, 2014. After the Government conceded that at

least 103 non-excludable days had passed since Stevenson’s

arraignment, the District Court agreed with Stevenson that the

Speedy Trial Act required dismissal of the first superseding

6

indictment.1 Unfortunately for Stevenson, the Court did not

agree with his request to dismiss the indictment with

prejudice.

Guided by three factors the Speedy Trial Act requires

trial courts to consider, see 18 U.S.C. § 3162(a)(2), the

District Court held that dismissal without prejudice was

appropriate. The Court concluded that the first factor—the

seriousness of the offense—weighed against dismissal with

prejudice because courts have consistently agreed that drug

trafficking and firearm offenses are serious. It also decided

that the second factor—the facts and circumstances that led to

the Speedy Trial Act violation—militated against dismissal

with prejudice. In the District Court’s view, the non-

excludable delay was relatively harmless “in light of the

repeated delays and the chaotic nature” of the case—much of

1 During the pendency of Stevenson’s motion, the

Government obtained a second superseding indictment

against Stevenson which reasserted the same charges as the

first one and added counts for possession with intent to

distribute a controlled substance in violation of 21 U.S.C.

§ 841(a)(1), possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c),

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1), and possession of a firearm by a fugitive

from justice in violation of 18 U.S.C. § 922(g)(2). Applying

out-of-circuit precedent holding that the speedy trial period

does not reset when stale charges are strategically reasserted

in a superseding indictment, the Court ruled that the

Government’s second superseding indictment did not remedy

the violation with respect to the three original counts of the

first superseding indictment.

7

which was attributable to the acts of the eight Defendants.

App. 43. Finally, the Court viewed the third factor—the

impact of a new prosecution on the administration of

justice—as supporting dismissal without prejudice because

Stevenson did not show that he was prejudiced by the

Government’s violation of the statute. For these reasons, the

Court dismissed the charges against Stevenson contained in

the first superseding indictment without prejudice on

September 4, 2014.

The Government obtained a third superseding

indictment against Stevenson on September 9, 2014. The

charges in that indictment were the same as the one that

preceded it, except for a new count of fraud in relation to

identification documents in violation of 18 U.S.C.

§ 1028(a)(7). Stevenson promptly moved to dismiss this new

charge on the basis that the indictment failed to allege the

interstate-commerce element of the offense, but the District

Court found the indictment sufficient and denied the motion.

In anticipation of defending against this charge, Stevenson

moved to suppress evidence relating to the stop of his vehicle

and his production of false identification. The Court denied

the motion prior to trial, finding that Stevenson had provided

no evidence to support his contention of an unlawful stop, but

allowed Stevenson to re-argue the motion, ultimately

concluding that the stop was supported by reasonable

suspicion that “Inf” was the driver and that criminal activity

was afoot.

After a one-week trial, the jury found Stevenson guilty

on all counts except one: possession of a firearm in

furtherance of drug trafficking. The Court sentenced

Stevenson to 360 months’ imprisonment on the conspiracy-

to-distribute and possession-with-intent-to-distribute counts,

8

96 months on the communications-facility count, 120 months

on each of the firearms-related counts, and 240 months on the

fraud count—all to run concurrently. Stevenson appealed.2

II

Although Stevenson raises several challenges to his

conviction and sentence, his principal argument is that the

District Court abused its discretion when it dismissed the first

superseding indictment without prejudice. He also takes issue

with the adequacy of the facts alleged in the indictment to

support the identification-document fraud charge, the District

Court’s refusal to suppress evidence gathered from the stop of

his vehicle and the search of his residence, the propriety of

the District Court’s conduct during trial, and the

reasonableness of his sentence. We address each argument in

turn.

A

The Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial.”

U.S. Const. amend. VI. To vindicate this right, Congress

established a bright-line rule in the Speedy Trial Act, 18

U.S.C. §§ 3161–3174, which requires that a trial start “within

seventy days from the filing date (and making public) of the

information or indictment, or from the date the defendant has

appeared before a judicial officer of the court in which such

charge is pending, whichever date last occurs.” 18 U.S.C.

2 The District Court had jurisdiction under 18 U.S.C.

§ 3231 and we have appellate jurisdiction pursuant to 28

U.S.C. § 1291.

9

§ 3161(c)(1). This deadline is not absolute, however, because

certain periods of delay “shall be excluded . . . in computing

the time within which the trial . . . must commence.” 18

U.S.C. § 3161(h). The most common form of “excludable”

delay results from the filing and disposition of pretrial

motions. 18 U.S.C. § 3161(h)(1)(D).

If a defendant is not brought to trial within the

requisite time, the Speedy Trial Act mandates dismissal of the

indictment upon the defendant’s motion. 18 U.S.C.

§ 3162(a)(2). As for whether the dismissal should be with or

without prejudice, the Act requires the court to “consider,

among others, each of the following factors: [1] the

seriousness of the offense; [2] the facts and circumstances of

the case which led to the dismissal; and [3] the impact of a

reprosecution on the administration of this chapter and on the

administration of justice.” 18 U.S.C. § 3162(a)(2). The

Supreme Court has explained that the “district court must

carefully consider th[ese] factors as applied to the particular

case and, whatever its decision, clearly articulate their effect

in order to permit meaningful appellate review.” United

States v. Taylor, 487 U.S. 326, 336 (1988).3

3 We review the District Court’s dismissal without

prejudice for abuse of discretion and its underlying factual

findings for clear error. Taylor, 487 U.S. at 336–37; see also

United States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir.

1993) (“Because ‘Congress has declared that a decision will

be governed by consideration of particular factors,’ appellate

review is limited to ascertaining ‘whether a district court has

ignored or slighted a factor that Congress has deemed

pertinent to the choice of remedy.’”) (quoting Taylor, 487

U.S. at 336–37).

10

1

We now turn to the question of whether the District

Court gave appropriate consideration to these factors and

acted within its discretion in dismissing the first superseding

indictment without prejudice.4 The first factor is “the

seriousness of the offense.” 18 U.S.C. § 3162(a)(2). This

element “centers primarily on society’s interest in bringing

4 As a threshold matter, the Government now concedes

that it did not reset the speedy trial clock by obtaining a

second superseding indictment in response to Stevenson’s

motion to dismiss. As we have explained, “[w]hen subsequent

charges are filed in a supplemental indictment that charge the

same offense as the original indictment or one required to be

joined therewith . . . the speedy trial period commences with

the original filing.” United States v. Lattany, 982 F.2d 866,

872 n.7 (3d Cir. 1992) (emphasis added). Hence, the second

superseding indictment did not rescue the three original

charges of the first superseding indictment (conspiracy to

distribute a controlled substance, unlawful use of a

communication facility, and possession of a stolen firearm).

On the other hand, “[i]f the subsequent filing charges a new

offense that did not have to be joined with the original

charges, then the subsequent filing commences a new,

independent speedy trial period.” Id. Because none of the new

charges added in the second superseding indictment were

required to have been joined with the three original charges,

the District Court was correct in dismissing only those three

counts. See Blockburger v. United States, 284 U.S. 299, 304

(1932) (holding that offenses requiring proof of different

elements are distinct and need not be charged together);

United States v. Xavier, 2 F.3d 1281, 1291 (3d Cir. 1993).

11

the particular accused to trial.” United States v. Hastings, 847

F.2d 920, 925 (1st Cir. 1988). The logic behind this factor is

intuitive: “[t]he graver the crimes, the greater the insult to

societal interests if the charges are dropped, once and for all,

without a meaningful determination of guilt or innocence.”

Id.

Stevenson concedes that the drug and firearm charges

at issue are serious because “overwhelming precedent

acknowledg[es] the serious nature of such charges.”

Stevenson Br. 19. See, e.g., Taylor, 487 U.S. at 328, 338–39

(“We have no reason to doubt” that “charges of conspiracy to

distribute cocaine and possession of 400 grams of cocaine

with intent to distribute” are “serious.”); United States v.

Williams, 314 F.3d 552, 559 (11th Cir. 2002) (conspiracy to

distribute and possession with intent to distribute cocaine are

“extremely serious” offenses under the Speedy Trial Act

whose seriousness is compounded by possession of a firearm

during the offenses); United States v. Brown, 770 F.2d 241,

244 (1st Cir. 1985) (charges for distribution and conspiracy to

distribute cocaine are “undeniably serious” and “militate in

favor of dismissal without prejudice”); United States v.

Simmons, 786 F.2d 479, 485 (2d Cir. 1986) (possession of

heroin with intent to distribute is “serious” within the

meaning of the Speedy Trial Act); United States v. Moss, 217

F.3d 426, 431 (6th Cir. 2000) (possession of cocaine with

intent to distribute is a serious offense); United States v.

Wright, 6 F.3d 811, 814 (D.C. Cir. 1993) (same). We join our

sister courts today and hold that Stevenson’s heroin and

firearms offenses are serious crimes for purposes of the

Speedy Trial Act. Accordingly, the District Court rightly held

that the first factor weighed in favor of dismissal without

prejudice.

12

2

The second consideration—the facts and

circumstances that led to dismissal—also supports the District

Court’s decision. This factor requires courts to consider the

reasons for the delay: did it stem from “intentional dilatory

conduct” or a “pattern of neglect on the part of the

Government,” or rather, from a relatively benign hitch in the

prosecutorial process? United States v. Cano-Silva, 402 F.3d

1031, 1036 (10th Cir. 2005) (“In determining whether the

facts and circumstances warrant dismissal with prejudice we

focus on the culpability of the conduct that led to the delay.”);

see also United States v. Blevins, 142 F.3d 223, 226 (5th Cir.

1998) (“Regarding the facts and circumstances leading to the

dismissal, we look to whether the Government sought the

resultant delays for ulterior purposes as well as whether the

Government’s failure to meet deadlines was repetitive,

regular, and frequent with respect to this defendant.”).

Applying these principles, the District Court

reasonably concluded that although “the Government

certainly neglected its duties by failing to bring th[e] case to

trial” with sufficient dispatch, the circumstances indicated

that the error was “relatively innocent and harmless.” App.

43. For instance, there was no evidence that the Government

had acted in bad faith or to gain some tactical advantage. See

United States v. Becerra, 435 F.3d 931, 937 (8th Cir. 2006)

(bad faith or willful misconduct can support dismissal with

prejudice); United States v. Medina, 524 F.3d 974, 987 (9th

Cir. 2008) (same); Taylor, 487 U.S. at 339. Nor was there

reason to believe that the Government had engaged in a

“pattern of neglect.” Taylor, 487 U.S. at 338–39 (contrasting

a “truly neglectful attitude” with “isolated unwitting

violation[s]”); see also United States v. Kottmyer, 961 F.2d

13

569, 572–73 (6th Cir. 1992) (affirming dismissal without

prejudice where no “pattern of neglect” or “intentional

dilatory conduct” had been shown); United States v. Clymer,

25 F.3d 824, 831–32 (9th Cir. 1994) (noting that “the sheer

length of the [delay] involved” in a Speedy Trial Act

violation may significantly impact whether dismissal with

prejudice is warranted).

Stevenson faults the District Court for looking to the

number of excludable days in addition to the length of the

non-excludable delay in the course of its analysis, but we

perceive no error in that regard. In reviewing the events that

led to the Speedy Trial Act violation, the Court noted that the

non-excludable days that had elapsed between Stevenson’s

arraignment and his motion to dismiss were dwarfed by the

hundreds of days that had been excluded—virtually all due to

motions made by Stevenson and his codefendants.5 But the

Court did not examine the number of excludable days as part

of a balancing exercise. Rather, it did so to inform its

evaluation of the litigation as a whole and indicated that the

Government’s impermissible delay was “explainable in light

of the repeated delays and the chaotic nature of th[e] case,

which, at its height, included eight coconspirator defendants,

several of whom were in the process of negotiating plea

5 For instance, 33 of the 34 motions for extensions of

time and for continuances were filed by Stevenson and his

codefendants. Such delays were no doubt compounded by

Stevenson’s initial refusal to admit that he was, in fact,

Terrell Stevenson in his early appearances before the Court

(posing instead as “Stevenson’s representative”), as well as

his peculiar insistence that the District Court lacked

jurisdiction because the case belonged in admiralty court.

14

arrangements at the time that the Speedy Trial violation

occurred.”6 App. 43–44. Taken together, these facts and

circumstances support the District Court’s conclusion that the

second statutory factor also favored dismissal without

prejudice.7

6 Contrary to Stevenson’s assertion, this assessment

comported with the Government’s explanation for the non-

excludable delay. Accordingly, his citation to the pre-Taylor

case, United States v. Russo, for the proposition that “[s]ome

affirmative justification must be demonstrated to warrant a

dismissal without prejudice” is inapposite. 741 F.2d 1264,

1267 (11th Cir. 1984) (per curiam) (reversing the district

court’s decision to dismiss without prejudice where the only

reason for a several-month delay was the government’s

negligence). In any event, we view Russo as an outlier and are

inclined to agree with its dissent. See id. at 1268 (Atkins, J.,

dissenting). In particular, the majority’s terse consideration of

the Speedy Trial Act factors in that case not only was

insufficiently deferential to the district court, but also

superimposed a strong “affirmative justification” requirement

on the “facts and circumstances” factor—thereby putting a

thumb on the scale in favor of dismissal with prejudice—that

is both absent from the text of the statute and inconsistent

with the Supreme Court’s subsequent instruction in Taylor

that a bare assertion that there was “no excuse” for a given

delay affords inadequate basis for dismissal with prejudice.

487 U.S. at 339.

7 The only Speedy Trial Act violation Stevenson

alleged in the District Court was the 103-day non-excludable

period between October 25, 2013, and February 7, 2014. He

now argues for the first time that the total number of non-

15

3

The last statutory factor—the impact of a

reprosecution on the administration of the Speedy Trial Act

and on the administration of justice—also supports the

Government. “The main considerations that courts have taken

into account when examining this factor are whether the

defendant suffered actual prejudice as a result of the delay

and whether the government engaged in prosecutorial

misconduct that must be deterred to ensure compliance with

the Act.”8 United States v. Howard, 218 F.3d 556, 562 (6th

excludable days following his arraignment was actually 165

days. Our review of the docket supports this figure, but the

District Court was not required to “scour the record to make

the case of a party who d[id] nothing,” Herman v. City of

Chicago, 870 F.2d 400, 404 (7th Cir. 1989), and Stevenson

has not claimed it was improper for the District Court to rely

on the parties’ stipulation as to the delay. Regardless, the

District Court opined that “[e]ven if there [were] other

nonexcludable days that the parties [did not bring] to the

Court’s attention,” the broader facts and circumstances still

weighed in favor of dismissal without prejudice in light of the

defendant-driven deluge of excludable days throughout the

protracted run-up to trial and the disorder they produced.

App. 43.

8 The Supreme Court has suggested that prejudice to

the defendant is among the “other[]” non-express factors that

the Speedy Trial Act directs district courts to consider. See

Taylor, 487 U.S. at 333–34 (gleaning from the legislative

history “the relevance of prejudice to the defendant”); id. at

344 (Scalia, J., concurring in part) (arguing that the facts “(1)

that prejudice to the defendant is one of the factors that the

16

Cir. 2000) (internal citation and quotation marks omitted); see

also Blevins, 142 F.3d at 226. The District Court concluded

that this factor weighed in favor of dismissal without

prejudice, reasoning that it was “very difficult to discern how

Stevenson could plausibly have been prejudiced by the delay

that occurred,” that he had offered no evidence of prejudice,

and that there had been no Government misconduct beyond

the bare fact of the delay. App. 44.

Stevenson counters by arguing that he suffered actual

prejudice because the delay enabled the Government to reach

plea agreements with some of his co-defendants and turn

them against Stevenson. We are not persuaded for several

reasons. First, at least two co-defendants pleaded guilty and

agreed to testify against Stevenson well before the speedy

trial clock expired. Second, there is no evidence of record that

phrase ‘among others’ in § 3162(a)(2) refers to, and (2) that

that factor is not necessarily determinative [are] so utterly

clear from the text of the legislation that there is no

justification for resort to the legislative history”). Courts have

widely recognized, however, that this technically distinct

factor often fits quite naturally into assessments of the third

express factor. See, e.g., United States v. Sykes, 614 F.3d 303,

309 (7th Cir. 2010) (“That the court should consider whether

the defendant has been prejudiced is implicit in th[e] broadly

stated formula [of § 3162(a)(2)].”); United States v. Godoy,

821 F.2d 1498, 1506 (11th Cir. 1987) (“The third factor

makes clear the flexible, balancing approach required under

§ 3162(a)(1). In addition, it provides authority for considering

such aggravating and mitigating factors as the length of the

delay and the prejudice to the defendant.”); Campbell v.

United States, 364 F.3d 727, 731 (6th Cir. 2004).

17

the Government delayed the prosecution to facilitate turning

witnesses against Stevenson. Third, Stevenson has not shown

that the Speedy Trial Act violation undermined his “ability to

prepare for trial.” United States v. Hernandez, 863 F.2d 239,

244 (2d Cir. 1988). Nor is there any indication that the delay

impaired Stevenson’s ability to mount an effective defense;

for instance, no witnesses or evidence became unavailable as

a result of the delay. Campbell v. United States, 364 F.3d 727,

731 (6th Cir. 2004); United States v. Saltzman, 984 F.2d

1087, 1094 (10th Cir. 1993) (“[T]he defendant has a burden

under the [Speedy Trial] Act to show specific prejudice.”)

(emphasis added). Because its conduct was unintentional,

“penalizing the government for the delay [would not

appreciably] deter any similar behavior in the future.” United

States v. Abdush-Shakur, 465 F.3d 458, 463 (10th Cir. 2006).

And although the delay at issue was significant, Stevenson’s

crimes were very serious and the “administration of justice

would be harmed if reprosecution were barred.” United States

v. Hamell, 3 F.3d 1187, 1189 (8th Cir. 1993); see also United

States v. May, 819 F.2d 531, 534 (5th Cir. 1987) (“When the

charges are serious, courts should impose the sanction of

dismissal with prejudice only for a correspondingly serious

delay, especially in the absence of a showing of prejudice.”).9

9 Notwithstanding the seriousness of his charges,

Stevenson claims the District Court failed to weigh the

gravity of his crimes against the length of the Government’s

delay. But the extent of a Speedy Trial Act violation has no

bearing on the seriousness of the underlying charges against a

defendant. Moreover, the Court properly factored the length

and nature of the delay into its assessment of the facts and

circumstances that led to dismissal and the lack of prejudice

to Stevenson.

18

Moreover, the mere fact that the Government’s case against

Stevenson “may get stronger with time is not sufficient to

support [his] position that his speedy trial right was violated”

absent evidence of prejudice suffered because of the delay.

United States v. Trueber, 238 F.3d 79, 91 (1st Cir. 2001). For

these reasons, the District Court did not err in determining

that the final statutory factor also weighed in favor of

dismissal without prejudice.

* * *

“Dismissal without prejudice is not a toothless

sanction: it forces the Government to obtain a new indictment

if it decides to reprosecute, and it exposes the prosecution to

dismissal on statute of limitations grounds.” Taylor, 487 U.S.

at 342. The Government paid a price for its delay and has had

to expend resources on appeal as a consequence. And while a

zero-tolerance policy for Speedy Trial Act violations

probably would reduce the incidence of such violations, “[i]f

the greater deterrent effect of barring reprosecution could

alone support a decision to dismiss with prejudice, the

consideration of the other factors identified in § 3162(a)(2)

would be superfluous, and all violations would warrant

barring reprosecution.” Id. There are cases in which the

Speedy Trial Act violation is so substantial, the motive so

inappropriate, or the resultant prejudice so great that it would

be an abuse of discretion for a district court to fail to dismiss

an indictment with prejudice. This case is not one of them.

B

Stevenson next challenges his conviction for fraud in

relation to identification documents on several grounds. First,

he claims the third superseding indictment did not include a

19

“plain, concise, and definite written statement of the essential

facts constituting the offense charged.” Fed. R. Crim. P.

7(c)(1). This requirement is rooted in the Fifth and Sixth

Amendments of the Constitution. The former requires grand-

jury indictment for “infamous crime[s],” U.S. Const. amend.

V, and the latter insists upon notice to the defendant of the

“nature and cause of the accusation,” U.S. Const. amend. VI.

Pursuant to these guarantees, the Supreme Court has

instructed that an indictment must contain all the elements of

the charged offense to ensure that a grand jury found them

present and to “fairly inform[] a defendant of the charge

against which he must defend,” as well as “enable[] him to

plead an acquittal or conviction in bar of future prosecutions

for the same offense.” Hamling v. United States, 418 U.S. 87,

117 (1974); see also Russell v. United States, 369 U.S. 749,

768–70 (1962). In other words, “an indictment is facially

sufficient if it (1) contains the elements of the offense

intended to be charged, (2) sufficiently apprises the defendant

of what he must be prepared to meet, and (3) allows the

defendant to show with accuracy to what extent he may plead

a former acquittal or conviction in the event of a subsequent

prosecution.” United States v. Huet, 665 F.3d 588, 595 (3d

Cir. 2012) (internal quotation marks omitted). It is well

established that “a defendant may contend that an indictment

is insufficient on the basis that it does not satisfy the first

requirement in that it fails to charge an essential element of

the crime.” United States v. Stock, 728 F.3d 287, 292 (3d Cir.

2013) (internal quotation marks omitted). That is Stevenson’s

contention here.

The third superseding indictment charged Stevenson

with fraud in relation to identification documents under 18

U.S.C. § 1028(a)(7). Section 1028 has a somewhat disjointed

20

structure: subsection (a)(7) makes it illegal to “knowingly

transfer[], possess[], or use[], without lawful authority, a

means of identification of another person” in furtherance of or

in connection with a crime, and then subsection (c)(3) also

requires that “the production, transfer, possession, or use

prohibited by this section is in or affects interstate or foreign

commerce.”10 Because the statute does not make Stevenson’s

conduct illegal absent this latter requirement, the interstate

commerce proviso is an essential element of the offense. See,

e.g., United States v. Spears, 697 F.3d 592, 601 (7th Cir.

2012), overturned in part on other grounds, United States v.

Spears, 729 F.3d 753 (7th Cir. 2013) (en banc).

The rules governing how a charge must be set forth in

an indictment are not exacting. Indeed, they “were designed

to eliminate technicalities in criminal pleadings and are to be

construed to secure simplicity in procedure.” United States v.

Bergrin, 650 F.3d 257, 264 (3d Cir. 2011) (citation and

internal quotation marks omitted). “[N]o greater specificity

than the statutory language is required so long as there is

sufficient factual orientation to permit a defendant to prepare

his defense and invoke double jeopardy.” Huet, 665 F.3d at

595 (internal quotation marks omitted). “Generally, an

indictment will satisfy these requirements where it informs

the defendant of the statute he is charged with violating, lists

the elements of a violation under the statute, and specifies the

time period during which the violations occurred.” Id.; see

also United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010)

(“An indictment that tracks the language of the underlying

statute generally suffices to meet this standard; provided,

10 Subsection (c) lists alternatives to this interstate

commerce requirement but none apply.

21

however, that the excerpted statutory language sets out all of

the elements of the offense without material uncertainty.”).

Moreover, we have eschewed any approach that insists upon

magic words that perfectly mirror the statutory language of

the charged offense: “[f]ailure to allege the statutory elements

will not be fatal provided that alternative language is used or

that the essential elements are charged in the indictment by

necessary implication.” Gov’t of V.I. v. Moolenaar, 133 F.3d

246, 249 (3d Cir. 1998).

1

Although it presents a close case, Stevenson’s charge

of fraud in relation to identification documents adequately

stated the essential elements of the offense. The indictment

charged that Stevenson:

did knowingly possess, without lawful

authority, a means of identification of another

person with the intent to commit, or to aid or

abet, or in connection with, any unlawful

activity that constitutes a violation of Federal

law, or that constitutes a felony under any

applicable State or local law, to wit: the

defendant possessed a fraudulent Georgia

Driver’s License bearing his photograph but in

the name of M.G.H. with the intent to aid in the

commission of possession with intent to

distribute a controlled substance and unlawful

possession of a stolen firearm.

22

App. 262. Conspicuously absent from this language is a

specific averment regarding the interstate commerce element

of § 1028. Nevertheless, the District Court denied

Stevenson’s motion to dismiss because the count mentioned

Stevenson’s drug and firearm offenses, which expressly

“rel[ied] on allegations of actions in or affecting interstate

commerce.” App. 50. “By alleging that the identification

documents were used to facilitate these activities,” the Court

reasoned, the fraud count “adequately states one of the

necessary elements of subsection (c), namely that the

‘possession . . . prohibited by this section is in or affects

interstate or foreign commerce.’” App. 50–51 (quoting 18

U.S.C. § 1028(c)(3)(A)). Although we agree with the Court’s

ultimate conclusion, this line of reasoning is problematic.

It is true that the Federal Rules of Criminal Procedure

allow “[a] count [to] incorporate by reference an allegation

made in another count.” Fed. R. Crim. P. 7(c)(1). But “any

such incorporation must be expressly done.” United States v.

Knowles, 29 F.3d 947, 952 (5th Cir. 1994) (finding a count

defective where “the count that charged [the defendant] with

possession of a firearm in a school zone, did not expressly

refer to the interstate commerce nexus alleged” in a separate

count); see also United States v. Knox Coal Co., 347 F.2d 33,

38 (3d Cir. 1965) (“[U]nless the charging part of a conspiracy

count specifically refers to or incorporates by reference

allegations which appear under the heading of the overt acts,

resort to those allegations may not be had to supply the

insufficiency in the charging language itself.”); United States

v. Fulcher, 626 F.2d 985, 988 (D.C. Cir. 1980) (“Each count

in an indictment is regarded as if it was a separate indictment.

Each count must stand on its own, and cannot depend for its

validity on the allegations of any other count not specifically

23

incorporated.”); 11A Cyc. of Federal Proc. § 42:105 (3d ed.)

(“[A]n incorporation by reference must be clear, full, and

definite and must be expressly done. In addition, the matter

incorporated by reference is limited to what is embraced

within the reference clause.”).

Here, the indictment’s reference to the drug and

firearm charges against Stevenson is insufficiently specific to

incorporate the interstate commerce element into the fraud

count. Indeed, we rejected a similar incorporation theory in

United States v. Spinner. Spinner was charged with access

device fraud in count one of an indictment and with bank

fraud in count two. 180 F.3d 514, 515 (3d Cir. 1999). Both

offenses included an interstate commerce element, but the

government failed to allege that element in the first count. Id.

We rejected the argument that count one could absorb the

element from count two by intra-indictment osmosis, holding

that the indictment’s failure to allege all the elements of bank

fraud required reversal of Spinner’s access-device fraud

conviction. Id. at 516. Accordingly, the District Court erred to

the extent that it merely relied on the fact that other charges in

the indictment require a nexus to interstate commerce to

satisfy the independent requirement that the false

identification charge allege such a connection.

Nevertheless, we read the indictment here to include

the interstate commerce element of § 1028. The false

identification count’s reference to Stevenson’s use of a

Georgia identification document in Pennsylvania with the

intent to further drug and firearm offenses alleges an effect on

interstate commerce by “necessary implication.” Moolenaar,

133 F.3d at 249; see also United States v. Harms, 442 F.3d

367, 372 (5th Cir. 2006) (explaining that so long as an

indictment as a whole “fairly imports” an element, “an exact

24

recitation of [that] element . . . is not required”). Inherent in

the indictment’s description of Stevenson’s actions is

interstate commercial activity: the use of a fake Georgia

drivers’ license in Pennsylvania to further drug and firearm

crimes. For this reason, we hold that the false identification

count sufficiently communicated the interstate commerce

element to the grand jury and informed Stevenson of the

nature of the charges against him.

2

Even had the indictment failed to allege the interstate

commerce element of the false identification offense, the

error would have been harmless. Although we previously

characterized a similar omission as a “fundamental defect” in

an indictment that deprived us of jurisdiction and was not

susceptible to harmless error review, Spinner, 180 F.3d at

516, that view is no longer valid. As we shall explain, an

indictment that fails to include all essential elements of the

charged offense is subject to harmless error review when the

issue was raised in the trial court.

Our opinion that defective indictments required

automatic reversal rested on two propositions: (1) that such

defects are jurisdictional; and (2) that they constitute

structural flaws not amenable to harmless error review. See

id. at 515–16. The Supreme Court explicitly rejected the first

proposition in United States v. Cotton. Evaluating an

indictment that failed to include an Apprendi sentencing

factor—a flaw the Fourth Circuit had deemed jurisdictional—

the Court reversed, holding that “defects in an indictment do

not deprive a court of its power to adjudicate a case.” 535

U.S. 625, 630 (2002).

25

As for the second proposition, the fact that a defect in

an indictment is not jurisdictional does not answer the

question of how we should review timely challenges to an

indictment’s sufficiency. See United States v. Prentiss, 256

F.3d 971, 983 (10th Cir. 2001) (en banc), overruled on other

grounds as recognized by United States v. Sinks, 473 F.3d

1315, 1321 (10th Cir. 2007). And the Supreme Court has

reserved for later consideration the issue “whether the

omission of an element of a criminal offense from a federal

indictment can constitute harmless error.” United States v.

Resendiz-Ponce, 549 U.S. 102, 104 (2007). But the Court’s

guidance in analogous circumstances leads us to conclude

that harmless error review applies because defective

indictments do not constitute “structural” error.

Structural error “deprive[s] defendants of ‘basic

protections’ without which ‘a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or

innocence . . . and no criminal punishment may be regarded

as fundamentally fair.’” Neder v. United States, 527 U.S. 1,

8–9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577–78

(1986)). Such errors, which require automatic reversal, occur

“only in a very limited class of cases.” Johnson v. United

States, 520 U.S. 461, 468 (1997). Moreover, “if the defendant

had counsel and was tried by an impartial adjudicator, there is

a strong presumption that any other errors that may have

occurred are subject to harmless-error analysis.” Rose, 478

U.S. at 579 (emphasis added). Stevenson cannot overcome

that strong presumption in this case.

The Supreme Court’s opinion in Neder is essentially

dispositive here. In Neder, the Court held that a trial court’s

failure to instruct a petit jury on every element of the charged

offense “does not necessarily render a criminal trial

26

fundamentally unfair or an unreliable vehicle for determining

guilt or innocence” and is hence subject to harmless-error

review. 527 U.S. at 9. That rule applies equally to the grand

jury context because “a defendant’s right to have a petit jury

find each element of the charged offense beyond a reasonable

doubt is no less important than a defendant’s right to have

each element of the same offense presented to the grand

jury.” Prentiss, 256 F.3d at 984. Nothing in the Supreme

Court’s precedents indicates otherwise. See, e.g, Cotton, 535

U.S. at 634 (suggesting that the Fifth Amendment grand jury

right and the Sixth Amendment petit jury right both serve

“vital function[s]” and should be protected equally). To the

contrary, the Court “has classified only two types of grand

jury related errors as structural, both involving discrimination

in the selection of grand jurors.” Prentiss, 256 F.3d at 983

(citing cases). “Otherwise, the Court has ‘see[n] no reason not

to apply [harmless error analysis] to error, defects,

irregularities or variances occurring before a grand jury just

as [it has] applied it to such error occurring in the criminal

trial itself.” Id. at 983–84 (quoting United States v. Mechanik,

475 U.S. 66, 71–72 (1986) (some internal quotation marks

omitted)).

We recognize that the Court of Appeals for the Ninth

Circuit has persisted in the view that a defective indictment

requires reversal. See United States v. Omer, 395 F.3d 1087,

1088 (9th Cir. 2005). Six judges of that Court have disagreed

with that decision, which may indicate that the rule is on

shaky ground even in the lone circuit that still adheres to it.

See United States v. Omer, 429 F.3d 835 (9th Cir. 2005)

(Graber, J., dissenting from denial of rehearing en banc)

(opining that an “absolute rule” of “automatic reversal of any

conviction in which the defendant timely, and correctly,

27

objected that an element of the crime was missing from the

indictment . . . . makes no sense”). But irrespective of

whether Judge Graber’s dissent from the denial of rehearing

en banc portends a change of course by the Ninth Circuit, we

agree with at least six United States Courts of Appeals that

harmless error review applies when an indictment’s omission

of an essential element is challenged in district court.11 See

United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005);

United States v. Robinson, 367 F.3d 278, 285 (5th Cir. 2004);

United States v. Higgs, 353 F.3d 281, 304–06 (4th Cir. 2003);

United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576,

580 (6th Cir. 2002); Prentiss, 256 F.3d at 981; United States

v. Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir. 2001).

The test for harmless error is set forth in Rule 52(a) of

the Federal Rules of Criminal Procedure: “[a]ny error, defect,

irregularity, or variance that does not affect substantial rights

must be disregarded.” This requires us to determine whether

“beyond a reasonable doubt . . . the error complained of did

not contribute to the verdict obtained.” Chapman v.

California, 386 U.S. 18, 24 (1967); see also Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986) (“An otherwise valid

conviction should not be set aside if the reviewing court may

confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt.”). To do so

we ask: “(1) whether the indictment provided [Stevenson]

11 Because it is inconsistent with the Supreme Court’s

treatment of defective indictments and jury instructions in

Cotton and Neder, we are not bound by our decision in

Spinner to the extent that it treated an indictment’s omission

of an essential element as a jurisdictional defect and structural

error.

28

sufficient notice of the crime with which he had been charged

and (2) whether [Stevenson] was harmed by losing the right

to have the public determine whether there existed probable

cause to charge the missing element.” United States v.

Dentler, 492 F.3d 306, 310–11 (5th Cir. 2007) (internal

quotation marks omitted).

First, although the count at issue did not explicitly

reference “interstate commerce,” it nevertheless provided

more than adequate statutory and factual detail to provide

Stevenson notice of the charge against which he was to

defend. See United States v. Mallen, 843 F.2d 1096, 1103 (8th

Cir. 1988). Nor has Stevenson made any claim to the

contrary.

We also resolve the second question in the

Government’s favor. To determine whether Stevenson was

harmed by losing the right to have the grand jury make a

probable cause determination regarding the interstate

commerce element, we consider “whether, on the basis of the

evidence that would have been available to the grand jury,

any rational grand jury presented with a proper indictment

would have charged that [Stevenson] committed the offense

in question.” Dentler, 492 F.3d at 311. Considering the same

evidence as that which was available to the grand jury, the

petit jury found Stevenson guilty after receiving explicit

instruction as to the facts necessary to convict Stevenson on

the interstate commerce element beyond a reasonable doubt.

This verdict strongly supports the conclusion that a rational

grand jury would have probable cause to charge Stevenson

with each and every element of the fraudulent identification

charge. See United States v. Robinson, 367 F.3d 278, 289 (5th

Cir. 2004) (noting that “the petit jury’s unanimous findings”

are “at a minimum, persuasive evidence of how a grand jury

29

would find”). Indeed, especially in light of the expansive

understanding of what constitutes “interstate commerce,” it is

hard to fathom how any rational person could conclude that a

defendant who used an out-of-state false identification in

furtherance of an interstate drug operation had probably not

done so “in or affect[ing] interstate . . . commerce.” 18 U.S.C.

§ 1028(c)(3)(a). Accordingly, to the extent that the indictment

was deficient, Stevenson suffered no harm and the District

Court did not err in denying his motion to dismiss that count

of the indictment.

C

We turn next to Stevenson’s Fourth Amendment

claims. Stevenson filed a motion to suppress evidence

acquired in the stop of his vehicle and the subsequent search

of his residence. He claims that the stop was not supported by

reasonable suspicion and that the affidavit in support of the

search warrant for his residence failed to establish probable

cause. We review the reasonable suspicion determination de

novo, Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003),

and the probable cause assessment for whether the

“magistrate had a ‘substantial basis’ for concluding that the

affidavit supporting the warrant established probable cause,”

United States v. Miknevich, 638 F.3d 178, 181 (3d Cir. 2011).

1

It is well established that a law enforcement officer

conducting a traffic stop “may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the

officer has a reasonable, articulable suspicion that criminal

activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000). The Supreme Court has not reduced “reasonable

30

suspicion” to a “neat set of legal rules,” preferring instead a

“totality of the circumstances” approach focused on “whether

the detaining officer has a particularized and objective basis

for suspecting legal wrongdoing.” United States v. Arvizu,

534 U.S. 266, 273–74 (2002) (internal quotation marks

omitted). “This process allows officers to draw on their own

experience and specialized training to make inferences from

and deductions about the cumulative information available to

them that might well elude an untrained person.” Id. at 273

(internal quotation marks omitted). Suspicion must be based

on more than a “mere hunch” to be reasonable, but “the

likelihood of criminal activity need not rise to the level

required for probable cause, and it falls considerably short of

satisfying a preponderance of the evidence standard.” Id. at

274 (internal quotation marks omitted).

The record supports the District Court’s conclusion

that there was reasonable suspicion to stop Stevenson’s

vehicle. Prior to the stop, the authorities had identified Hood

Promo as the hub of a heroin ring by conducting several

controlled drug purchases there and by identifying several

suspected members of the conspiracy, including a man going

by the street name “Inf” or “Infinite.” Law enforcement had

learned that “Inf” was a 5’6” black male in his late twenties

and his real name was probably Terrell Stevenson. The agents

also knew that “Inf”: drove a gray BMW, was reputed to be

responsible for heroin distribution in the Wilkes-Barre area,

and was a rapper in the group Currency Club. When those

facts are considered in light of the fact that the State of New

York had issued a warrant for Stevenson’s arrest, the agents

were well justified in stopping the gray BMW to determine

whether “Inf”/Stevenson was behind the wheel. See United

States v. Cortez, 449 U.S. 411, 417 (1981) (noting that “the

31

whole picture” must be taken into account in determining

reasonable suspicion and that “[t]he process does not deal

with hard certainties, but with probabilities”). Thus, the

District Court did not err when it denied Stevenson’s motion

to suppress physical evidence and testimony relating to the

stop of his vehicle and his use of false identification

documents.

2

Stevenson next claims that the affidavit of probable

cause in support of the warrant to search his residence was

insufficient. In reviewing this affidavit, our role “is simply to

ensure that the magistrate had a ‘substantial basis for . . .

conclud[ing]’ that probable cause existed.” Illinois v. Gates,

462 U.S. 213, 238–39 (1983) (quoting Jones v. United States,

362 U.S. 257, 271 (1960)).

The affidavit submitted by Special Agent Davis

provided extensive information of drug activity at Hood

Promo and sufficiently connected Stevenson to the illegal

conduct. It detailed: physical surveillance observing

Stevenson transporting unknown objects to and from Hood

Promo; the fact that Stevenson was wanted in New York on

drug-related charges; a reliable confidential source’s

identification of Stevenson as a Hood Promo heroin dealer;

and phone conversations and text messages between

Stevenson, Thomas, and Bush that—while “cryptic and

vague,” in the words of the District Court, App. 19—were

suggestive of drug activity.

Stevenson claims most of this is “guilt by association,”

and that the affidavit fails to adequately set forth the

confidential informant’s basis of knowledge for his claim that

32

Stevenson was involved in the Hood Promo heroin trafficking

scheme. Stevenson Br. 38. Although the informant’s basis of

knowledge is cursory, the information provided was

“corroborated through independent investigation” of Hood

Promo, Thomas, Bush, Stevenson, and others. See, e.g.,

United States v. Yusuf, 461 F.3d 374, 384 (3d Cir. 2006).

Because the totality of the circumstances described in the

affidavit provided a substantial basis for the magistrate to

conclude that there was a “fair probability that contraband or

evidence of a crime” would be found at Stevenson’s

residence, Gates, 462 U.S. at 238, the District Court did not

err when it denied Stevenson’s suppression motion.

D

Stevenson also claims he was deprived of a fair trial

when the judge “vouched” for a Government witness. During

the defense’s cross-examination of Government witness

William Nelson (the ringleader of the Hood Promo heroin

operation), the following exchange occurred:

Q. . . . All right, now, let’s talk about your

prior record. You have a felony conviction,

right?

A. Twenty-four years ago. Not admissible,

and it can’t be charged to me and I can’t be

given an enhancement. It was when I was 18

years old. So that’s irrelevant, that’s a moot

point right now, sir, why are you bringing that

up?

Q. Is that moot?

33

A. Yes, it is moot.

THE COURT: Stop. Mr. Nelson, take it

down a notch.

THE WITNESS: I’m gonna take it

down, but he’s trying to muddy the water.

I’m being honest here.

THE COURT: I know you are. But let

him ask his question.

App. 617–18. The defense did not object to the Court’s

remark, so we review it only for plain error. See Fed. R. Crim.

P. 52(b).

Considering the entire record in context, we conclude

that the District Court did not vouch for Nelson. See United

States v. Olgin, 745 F.2d 263, 269 (3d Cir. 1984) (“A

potentially prejudicial comment cannot be evaluated in

isolation, out of context.”). Faced with a witness’s rising

temper under the heat of counsel’s attempt to impeach him

with a decades-old conviction, the judge appropriately

stepped in to cool passions. The judge’s pacifying response “I

know you are” to Nelson’s flustered protestation that he was

“being honest” and that defense counsel was trying to

“muddy the water,” App. 618, “should not be literally

interpreted to mean that [the judge] would . . . under any

circumstances believe anything that [Nelson] said.” United

States v. Twomey, 806 F.2d 1136, 1143 (1st Cir. 1986). In our

view, no reasonable juror would have viewed the judge as

actually vouching for the witness’s testimony. Although

“[t]here is no bright line separating remarks that are

appropriate from remarks that may unduly influence a jury,”

34

Olgin, 745 F.2d at 269, the context of the exchange in this

case shows that the trial judge’s comment carried no improper

sway.

The four-factor “sliding scale” test we articulated in

Olgin to assess the propriety of a judge’s comments supports

our conclusion. 745 F.2d at 268. First, the comment lacked

“materiality” because the judge was not actually speaking to

Nelson’s credibility or in any other way opining on matters

“central to the defense.” Id. at 269 (citing United States v.

Anton, 597 F.2d 371, 374 (3d Cir. 1979) (reversible error

where judge made “flat statement of disbelief of the

testimony of the witness”)). Nor was the comment of an

“emphatic or overbearing nature” such that the jury might

accept it “as controlling”—it was casual and palliative more

than anything else. United States v. Gaines, 450 F.2d 186,

189 (3d Cir. 1971). Third, if the comment had crossed the

line, any error would have been ameliorated by the judge’s

thorough instructions, which emphasized to the jury, inter

alia, that it “should not take anything [the judge] may have

said or done during the trial as indicating what [he] think[s] of

the evidence or what [he] think[s] about what [the] verdict

should be.” App. 1151; Olgin, 745 F.2d at 269. Finally, our

review of the Court’s well crafted “jury instruction as a

whole” confirms what common sense already suggests: the

judge’s remark had no prejudicial effect on Stevenson. Olgin,

745 F.2d at 269.

35

E

Stevenson’s final argument is that the sentence

imposed by the District Court was procedurally

unreasonable.12 We disagree.

Stevenson argues that the District Court committed

procedural error by (1) treating the Guidelines as mandatory

in contravention of United States v. Booker, 543 U.S. 220

(2005); (2) failing to give meaningful consideration to the

sentence disparities between Stevenson and his co-

defendants; and (3) failing to give meaningful consideration

to the § 3553(a) sentencing factors.

His first point relies on the judge’s statement to

Stevenson at sentencing that he had enough prior convictions

to qualify as a career offender under the Guidelines and that

this was “significant . . . because it changes the way the law

looks at you and it changes the way the law looks at you in a

manner that I, in turn, must abide by.” App. 1571. Stevenson

quotes this statement for the proposition that the Court

12 We review Stevenson’s sentence under an abuse of

discretion standard. United States v. Tomko, 562 F.3d 558,

565 (3d Cir. 2009) (en banc). The party challenging the

sentence bears the burden of proving its unreasonableness.

United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). For

its sentence to have been “procedurally” reasonable, the

District Court must have correctly calculated the Guidelines

range, given meaningful consideration to the § 3553(a)

factors, and adequately explained the chosen sentence. Gall v.

United States, 552 U.S. 38, 51 (2007).

36

mistakenly thought itself bound by the Guidelines. Once

again, context proves otherwise.

“District Courts engage in a three step process when

imposing a sentence,” the first being that “the defendant’s

guideline range is calculated.” United States v. Larkin, 629

F.3d 177, 195 (3d Cir. 2010). This is the duty the judge was

referring to, which he performed just sentences later,

explaining: “that’s why you’re facing a total offense level

here of 37 and a criminal history category of 6 because you

are a Career Offender here.” App. 1571. The Court was

required to make this determination before moving on to

consider any departure motions (step two) and the § 3553(a)

factors (step three), and thus committed no error. See Larkin,

629 F.3d at 195.

Stevenson’s second procedural argument fares no

better. The District Court thoughtfully considered

Stevenson’s request for a downward departure from his high

Guidelines range based on his co-defendants’ substantially

lesser sentences and reasonably decided against it. In

particular, the Court found the disparities understandable in

light of the contrast between the co-defendants’ lower

criminal history categories and acceptance of responsibility

versus Stevenson’s career offender status, risk of recidivism,

and pointed lack of remorse. This assessment provided more

than sufficient consideration of Stevenson’s departure motion.

Cf. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

Finally, Stevenson’s contention that the District Court

failed to give meaningful consideration to the § 3553(a)

sentencing factors is belied by the record. The only argument

Stevenson has raised in this regard is that the District Court

did not account for his “disadvantaged upbringing and lack of

37

guidance as a youth.” Stevenson Br. 52. In fact, the District

Court gave careful consideration to Stevenson’s “difficult

childhood” and reasonably concluded that a within-

Guidelines sentence was warranted in light of Stevenson’s

life of crime. App. 1570–72. Because the record shows that

the District Court meaningfully considered all relevant

sentencing factors, we reject Stevenson’s contention that his

sentence was unreasonable.

III

All of the arrows in Stevenson’s appellate quiver miss

the mark, though one grazes its target. The District Court did

not err in dismissing the first superseding indictment without

prejudice, in denying his motion to dismiss the false

identification count of the indictment, in denying his

suppression motions, in making a statement obviously geared

toward pacifying an emotional witness at trial, or in

sentencing Stevenson to 360 months’ imprisonment.

Accordingly, we will affirm.